Sunita Devi Vs HP Staff Selection Commission

 

Sunita Devi Vs HP Staff Selection Commission

CWP No. 3035 of 2019 a/w CWP Nos. 3121,3284,3340, 3362 and 3458 of 2019 Decided on 25.11.2019

 

Coram

The Hon’ble Mr. Justice L. Narayana Swamy, Chief Justice.

The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

 

For the petitioner(s) : M/s. Jiya Lal Bhardwaj, Lokender Pal Thakur, Suneet Goel, Adarsh K. Vashista and Salochna  Rana, Advocates, for respective petitioner(s)

For the respondents : Mr. Ashok Sharma, Advocate General M/s. J. K. Verma, Ritta Goswami and Adarsh K. Sharma, Additional Advocates General for respondentState.  Mr. Angrez Kapoor, Advocate, vice Ms. Anjula Khajuria, Advocate, for respondent No.3 in all the cases.

 

L. Narayana Swamy, Chief Justice(Oral)

 

Since common prayers have been made in these writ petitions, we deem it appropriate to dispose of all these writ petitions by this common judgment.

2. Pursuant to the requisition received from Director Ayurveda, Himachal Pradesh for filling up of 66 posts of Ayurvedic Pharmacists (on contract basis), which have been reserved for the Wards of Ex-servicemen i.e. General (W.Exsm); OBC (W.Exsm); SC (W.Exsm) and ST (W.Exsm), petitioners have submitted their applications, as per the Notification issued by the respondentSelection Commission. The petitioners claimed for consideration of their candidature under different categories of Ex.Servicemen and they have submitted the certificates of Ward of Ex-servicemen on the Format, which is prescribed for the said purpose issued by the Competent Authority, namely, Deputy Director, Zila Sanik Welfare Officer and they were required to submit their certificates as per Annexure-A, duly issued by Patwari/Pradhan Gram Panchayat/President of NAC/ Executive Officer of MC etc. with the further counter-signature of Tehsildar/SDO (Civil) of the area supported by Annexure-B in affidavits made by the deponentpetitioners while submitting their applications. The respondentSelection Commission has processed their applications, allowed them to appear in the written test and interview. However, at the time of evaluation, the candidature of the petitioners have been rejected vide impugned Notice(s) on the ground that certificate of Ward of Exserviceman was not issued in a prescribed Format for fulfilling the requirement for grant of reservation to the ward of Ex-serviceman. Therefore, a prayer has been made in these writ petitions to quash the Notice(s), whereby candidatures of the petitioners have been rejected and further a direction has been sought to the respondents to consider their cases for the selection to the posts for which they have applied.

3. Learned counsel for the petitioner(s) submit that petitioner(s) belong to different categories under Ex-servicemen quota and for consideration of the said posts, they should not suffer for the purpose of selection. They are/were not aware about the Format prescribed by the respondent, however, they have made an application to the Competent Authority i.e. Deputy Director, Zila Sanik Welfare Officer qua issuance of an appropriate certificate and considering their request and by satisfying himself for their eligibility, the Authority has issued a certificate, which has been submitted to the respondents. As per Notification the said certificate is duly issued by Patwari/Pradhan Gram Panchayat/President of NAC/ Executive Officer of MC etc. with the further counter-signature of Tehsildar/SDO (Civil), along with the affidavits sworn in by the petitioners. Hence the impugned action of the respondents is arbitrary and accordingly, Notice(s) rejecting the candidature of the petitioners is liable to be set aside.

4. Learned counsel for the respondent/Selection Commission, on the other hand, has supported the impugned Notice(s) and submits that the application Format has been prescribed and it was made clear that certificate issued for the Ward of Ex-serviceman must be in the prescribed Format, which is available in the Notification itself. He further submits that non-production of the same in a prescribed Format is in contravention of the Notification. Accordingly, in his submission, the rejection is justified and prays for dismissal of the petitions.

5. Mr. Adarsh K. Sharma, learned Additional Advocate General submits that the certificate was in a specific Format, though it has been issued by the respondent-Commission but it has been changed by the Competent Authority and in letter and spirit what is required is that a certificate is to be issued by the Competent Authority on a prescribed Format. Thus the rejection of candidature of the petitioners is justifiable.

6. We have heard learned counsel for the parties and have also gone through the records of the case.

7. It appears that Himachal Pradesh Staff Selection Commission, Hamirpur, has declared the category-wise final result for the recruitment of 66 posts on 18th October, 2019 (Annexure P-14) i.e. General (W.Exsm)=37; OBC (W.Exsm)=10; SC (W.Exsm)=13 and ST (W.Exsm)=06 of Ayurvedic Pharmacist (on contract basis), whereby the candidature of petitioners have been rejected, as they have failed to submit the applicable certificate on the prescribed format for fulfilling the requirements of grant of reservation of Ward of Exservicemen category at the time of 15 marks evaluation process.

8. Be that as it may, for the present we are only concerned with the consideration of the certificates issued to the Wards of Exserviceman by the competent authority namely, Deputy Director, Zila Sanik Welfare Officer and again another certificate to be issued by Patwari/Pradhan Gram Panchayat/President of NAC/ Executive Officer of MC etc. with further counter-signature of Tehsildar/SDO (Civil), for their consideration to the posts in question. The applicant had to file an affidavit to that effect and thus it was the duty of the respondent-Commission to find out whether the certificates have been issued by the competent authority or not and evaluate their candidature without rejection, in the light of the certificates. In our considered view, the certificates should have been considered for the purpose of evaluation of the petitioners by the respondentCommission.

9. Though the petitioners have no fundamental right of selection but have a fundamental right for consideration to the selection and while dealing with fundamental rights respondents have to take all possible steps for considering the applications, until and unless it is hopelessly barred by non-compliance. If any of the applications/certificate was not in the proper format and if there is a technical error, it is to be treated as curative defect which can be curated at any time. At this stage, we find the rejection of the candidature of the petitioners nothing but violation of fundamental right for the purpose of Article 14 of the Constitution of India.

10. The Selection Commission in order to ensure whether the petitioners are really and genuinely the Wards of Ex-servicemen or not could do it before issuance of appointments order by sending the said certificates to the officers, who have issued thesame, for cross verification, till then no persons could have been held entitled for selection. We are satisfied that the Format which was though prescribed along with the application could not be exactly the same but in letter and spirit it is the same in compliance claiming their candidature for consideration under the Ward of Ex-servicemen. Also the cases of candidates belonging to SC,ST and OBC categories have also to be verified by the competent authority. Therefore, in our considered view the certificates issued in favour of the petitioners are required to be sent to the Competent Authority for cross-verification and on verification, if found suitable, the cases of the petitioners are required to be considered for selection and appointment to the aforesaid posts. In view of above, all writ petitions are allowed and impugned Notice(s) rejecting the candidature of the petitioners is quashed and set aside. Respondent-State is directed to re-draw the merit after evaluating the candidature of the petitioners within three months after re-verification of their certificates. Pending applications

if any also stand disposed of.